Audrey E. Stone and Rebecca J. Fialk, "Recent Development: Criminalizing the Exposure of Children to Family Violence: Breaking the Cycle of Abuse," 20 Harv. Women's L.J. 205, 222-224 (Spring 1997)
Audrey Stone is an Associate Director, Pace University Battered Women's Justice Center; J.D., New York Universty School of Law, 1991; A.B., Brown University, 1986. Rebecca Fialk is a third-year law student, Pace University School of Law; M.A., University of Kansas, 1973; B.S.N., Cornell University, 1975.
V. MODEL STATUTE
Existing statutes for endangering the welfare of a child can be used to prosecute
batterers for
exposing children to domestic violence. However, prosecutors encounter differing
interpretations of
these statutes in various jurisdictions. Without clear-cut definitions and guidelines,
courts reach
conflicting results and often hesitate to read the legislative intent of these
statutes expansively,
thereby leaving the child who witnesses domestic violence unprotected by the
criminal justice
system. After analyzing the problems of using child endangerment laws in the
context of family
violence, we propose the following model statute:
[*223] A person is guilty of endangering the welfare of a child when that
person, being a
family or household member, commits a criminal act of domestic violence in the
presence of a child, under the age of seventeen, who is also a family or household
member.
A "criminal act of domestic violence" occurs when a family or household
member
commits one or more of the following crimes against another family or household
member: n106
1. Arson;
2. Assault Offenses;
3. Homicide Offenses;
4. Kidnapping, Abduction;
5. Sex Offenses, Forcible (Forcible Rape, Forcible Sodomy, Sexual Assault
with an
Object, and Forcible Fondling);
6. Menacing with a Weapon;
7. Stalking.
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n106 The definition of a "criminal act of domestic violence" is
adapted from FAMILY
VIOLENCE: A MODEL STATE CODE § 201 (1994).
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A "family or household member" includes the following individuals:
blood relations,
relations through marriage, former spouses, persons with a child in common,
unrelated
persons who have lived together at any time, and unrelated persons who have
intimate
or continuous social contact. n107
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n107 This definition is based upon the New York State Department of Social
Services 1989
regulations and on the MODEL CODE ON DOMESTIC AND FAMILY VIOLENCE § 102
(1994). This definition is intentionally broad to cover domestic violence that
occurs outside the
"traditional family" context. See id. § 102 commentary at 2 (noting
that cohabitation is not
a prerequisite under this definition and that the relationship between the victim
and the
perpetrator need not be current because the violence may continue after a relationship
has ended).
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"In the presence of a child" is not limited to physical presence,
but can include a child's
seeing or hearing an act of domestic violence.
An affirmative defense under this statute exists when the act of violence
witnessed by the
child was legally justified (e.g., self-defense).
This model statute is drafted specifically to penalize the batterer who exposes
children to acts of
domestic violence. To accomplish this goal, the statute expressly refers to
exposing a child to
domestic violence instead of making vague references to endangering the general
health or welfare
of the child. This statute intentionally penalizes only the most violent criminal
conduct of
perpetrators of domestic violence. The language of this model statute also differs
from current child
endangerment statutes, such as those in New York and California, by eliminating
the requirement
of proving the harmful effects of witnessing domestic violence. [*224] Prosecutors
have found it
difficult to demonstrate the impact that witnessing abuse can have on a particular
child. n108 The
statute we propose would alleviate the necessity of proving harm to the child
in every case.
Furthermore, unlike present endangerment statutes, the language in the model
statute extends to
situations where the child does not have direct visual exposure to an incident,
including situations
where the child hears or observes the violence from a distance.
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n108 Where a child witnesses domestic violence, the San Diego City Attorney's
Office reports
success with one out of every two prosecutions based upon California's child
endangerment law,
Penal Code § 273a. Where a child has not been in close proximity to a domestic
violence incident,
prosecutors have found the case more difficult to prove. To confront this problem
in the future, the
San Diego City Attorney's Office plans to rely upon expert testimony on the
detrimental effects of
witnessing family violence. Telephone Interview with Gael Strack, San Diego
Prosecutor (June 14,
1996).
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Additionally, this model statute purposefully avoids penalizing victims of
domestic violence by
targeting the perpetrators of the abuse. To ensure that the statute is not misapplied
to victims of
domestic violence, an affirmative defense is provided where the act of violence
witnessed by the
child was itself legally justified. In a case where a victim acts in self-defense
and is therefore not
guilty of the underlying crime, this statute could not be used as the basis
for prosecution. n109
Furthermore, the crimes of domestic violence included in this law relate only
to physical acts of
violence, not to property crimes. Focusing on violent crimes ensures that the
proposed law
addresses the greatest dangers and harms to child witnesses. Our intent is for
prosecutors to use
this statute selectively and not to apply it to de minimis family disturbances.
In addition, our intent
is to limit application of the model statute to avoid its use as a tool for
further victimization of the
abused partner who damages property, trespasses, or causes an injury in response
to a threat by
the batterer.
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n109 Determining the initial aggressor in domestic violence cases has become
an important goal
of police departments with the rise in mandatory arrests. Women cannot be protected
by the
criminal justice system unless arrests are limited to the initial aggressors.
Police training on
domestic violence lowers the incidents of reciprocal arrests because police
are then better able to
determine whether the acts of violence were undertaken to perpetuate domestic
violence or in
self-defense. See Developments in the Law -- Legal Responses to Domestic Violence,
106 HARV. L. REV. 1501, 1551-55 (1993). See also Molly Chaudhuri & Kathleen
Daly, Do Restraining Orders Help? Battered Women's Experience with Male Violence
and Legal Process, in DOMESTIC VIOLENCE: THE CHANGING CRIMINAL JUSTICE RESPONSE
232-33 (Eve S. Buzawa & Carl G. Buzawa eds., 1992).